NINOMANIA

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:: Wednesday, December 21, 2005 ::

Luttig to Bush administration: take this! Padilla case will stay with DOD, rather than move to criminal justice system -- and the Supremes will jolly well get their whack at it if they want to!

:: David M. Wagner 7:24 PM [+] ::
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:: Thursday, December 15, 2005 ::

Latest e-ad from the ABA: a China Law Deskbook. The ad copy begins: "China has developed, and continues to develop, a legal system from scratch in just over 20 years." Well, scratch harder and discover some human rights.

:: David M. Wagner 12:11 PM [+] ::
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:: Wednesday, December 14, 2005 ::

Congratulations to my colleague (at the Government School) Jeffrey Morrison on his new book, John Witherspoon and the Founding of the American Republic, just out from Notre Dame Press, and the subject of a front-of-the-section, largely positive review (only objection: too scholarly!) in The Weekly Standard, Nov. 28, 2005, p. 29.

:: David M. Wagner 6:28 PM [+] ::
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:: Thursday, December 01, 2005 ::

Ayotte oral argument

A former student writes in:

My prediction is that the Court will send it back down to the lower court with an order to try and more narrowly tailor an injunction to allow exceptions for medical emergencies. Even Ginsburg, of all Justices, seemed perplexed as to why the whole law was struck down just for these rare (if ever) emergency cases.

I was pleased with Roberts, I think he will be very good.

:: David M. Wagner 12:59 PM [+] ::
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:: Monday, November 28, 2005 ::

Pieces Fall From Supreme Court Facade. Well, I've long said it was bound to crumble. Take a good look at exactly what symbol it was that dropped a basketball-sized chunk of marble this morning. (Hat-tip: How Appealing)

:: David M. Wagner 3:33 PM [+] ::
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Hello. That was a long blog-break by recent standards. Let's see what we've got today....

I'd say Judge Alito is still sailing toward confirmation. That 1985 DOJ job app was good for a few fundraising letters and attack ads, but two facts continue to make this a world apart from the Bork process in '87: the GOP Senate majority, and the presence of pro-nominee forces on the political/media battlefield.

I remember the tone of the headlines, day after day throughout the summer of '87: "Bork opinions raise concerns," "Support for Bork seen slipping," "Moderates uneasy about Bork," etc. etc. What do we see today? Warnings about the "political dangers" of attacking Alito; Alito keeps favor of conservatives, moderates; and this Washington Post piece on how both categories of "vulnerable Senators" are being lobbied: Republicans in liberal states, like Chafee (RI), and Democrats in conservative states, like Ben Nelson (NE) and Conrad and Dorgan (ND).

Also, the activist groups are now recognized as such. In '87, People for the American Way could pass for, you know, just a bunch of people who are for the American way. In '05, an ace conservative strategist like Keith Appell can say: "If you are a Democratic senator from a state that the president won, the last thing you want to do is be aligned with [liberal advocate] Ralph Neas or groups like People for the American Way."

So much, for now, about incoming Justices. As for Our Hero, here's one: Al Franken Schooled by Antonin Scalia at New York Event.

:: David M. Wagner 3:01 PM [+] ::
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:: Monday, November 14, 2005 ::

Yale Law Frets Over Court Choices It Knows Best. The New York Times continues its prurient obsession with all things Yalie, and Bruce Ackerman continues to demonstrate that political hacks can be found all up and down the law-school food-chain.

:: David M. Wagner 1:40 PM [+] ::
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:: Wednesday, November 09, 2005 ::

Fred Barnes agrees with me: Kilgore wouldn't say what he'd do if Roe were overturned, irritating many conservatives. See my Nov. 7 post.

:: David M. Wagner 12:03 PM [+] ::
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AG Race: McDonnell leads slightly over Deeds

By MATTHEW BARAKAT
Associated Press Writer

RICHMOND, Va. (AP) -- Republican Robert F. McDonnell held a narrow lead early Wednesday in the race for attorney general but stopped short of declaring victory over Democrat R. Creigh Deeds, who said he not concede and expects a lengthy recount.

...Deeds predicted Wednesday it would be weeks before the outcome of the race is known.

Well of course: in an off-year, with no other close statewide races around the country, every Democratic lawyer in the country could be heading to Virginia. I may even rent out my den, if I can do so at an unconscionable rate.

Seriously, though -- best to you, Bob, and recount their buns off!

:: David M. Wagner 11:23 AM [+] ::
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:: Tuesday, November 08, 2005 ::

First decision of Roberts Court unanimously upholds the Ninth Circuit.

:: David M. Wagner 2:17 PM [+] ::
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:: Monday, November 07, 2005 ::

Kilgore in a quagmiers?

You're in a "quagmiers" when you take your base for granted.

GOP nominee Jerry Kilgore may lose tomorrow's gubernatorial election here in Virginia. Power Line gives reasons for this. I'd like to give another: asked a straightforward hypothetical question as to whether, in a post-Roe world, he would sign a bill that bans abortion except in cases of rape, incest, or life of the mother, he has repeatedly refused to answer clearly.

Undoubtedly he didn't want to alarm the liberal folks up in Fairfax and Arlington counties (the places where Democratic AG nominee Creigh Deeds is running ads criticizing his opponent, frontrunner Bob McDonnell, for having attended this law school). But Mr. Kilgore may have forgotten that pro-life voters, too, have standards.

I say this because, during the course of the present day, I have randomly walked into three separate conversations in which people who would normally be considered part of the Republican "base" were expressing indecision about the Governor's race (not the AG's race -- we all admire Bob McDonnell!), and assigning as reason for their uncertainty Kilgore's perceived weakness on the pro-life issue.

Hardly a scientific sample -- but I wanted to put it on the record, because if Kilgore does in fact lose, the punditocracy will proclaim it was because he was too far to the "right" on "social issues." In fact, it may be because he was not far "right" enough.

N.B. (1) Conservative State Senator Ken Cuccinelli makes the conservative case for Kilgore here.

N.B. (2) Our local paper endorses Kaine for Governor -- and McDonnell for AG:

Virginia Beach GOP Del. Bob McDonnell merits election as one in a tiny pantheon of legislators with the intellect and the energy to have advanced a broad range of substantive legislation. He worked tirelessly to implement welfare-to-work reform, a tough-love approach to juvenile justice, performance reviews for judges, and to close the cracks through which repeat DUI offenders were esacaping. His workhorse mind-set, coupled with an uncommon willingness to recognize the shortcomings of his limited government ideology, make him a cut above.

:: David M. Wagner 2:35 PM [+] ::
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:: Sunday, November 06, 2005 ::

"Power corrupts, and PowerPoint corrupts absolutely." And other great jokes about weapons of mass instruction.

:: David M. Wagner 6:09 PM [+] ::
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:: Friday, November 04, 2005 ::

Does Alito have dissentary? A former Alito clerk writes in to say:

Okay, here's a small example of the silly ignorance suffused throughout critiques of Alito:

The NYT said in its editorial today [11/1]:

"The concerns about this particular nominee go beyond his apparent hostility to abortion, which was most graphically demonstrated in 1992 when his court ruled on what became known in the Supreme Court as the Casey decision. Judge Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse."

Note the use of the fact that he was "the sole judge on his court" that took a particular position. This point is ridiculous in the context of a three-judge appellate court panel. A dissent will, by definition, by "lone" in that context because otherwise the dissenter would have had a majority. (I.e., two out of the three judges on the panel.)

The only time a dissent on an appellate court can meaningfully be called "lone" is when it is a dissent from the majority view in an "en banc" decision -- meaning a decision in which all of the active (meaning non-"Senior") judges on a panel. Most typically (though not universally) an en banc hearing occurs after a three-judge panel of the Circuit has already issued a decision in a case but the rest of a Court grants a rehearing.

A minor mistake, perhaps, and certainly a technical one, but still ridiculous. And I believe it is a common tactic in the attempt to depict Alito (or any other conservative nominee) as being out of the mainstream.

:: David M. Wagner 12:44 PM [+] ::
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MSNCB: Cheney's new chief of staff controversial

Eeek, it's me!! No, no, wait -- the eyes are bit too small, the cheeks a bit too puffy, the glasses a bit too squared off, and the hair and beard, if I may say so, a bit too gray....

:: David M. Wagner 12:01 PM [+] ::
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:: Tuesday, November 01, 2005 ::

Democrats Signal Hesitance to Use Filibuster Against Alito

Nov. 1 (Bloomberg) -- Moderate U.S. Senate Democrats said they want to know more about Supreme Court nominee Samuel Alito Jr.'s judicial philosophy and signaled reluctance to support a filibuster to block his confirmation.

"There is no question the judge is a conservative,'' said South Dakota Democrat Tim Johnson, who voted in September to confirm Chief Justice John G. Roberts Jr.

...and who last year watched his former senior colleague go down the drain over the judicial obstructionism issue...

The issue is "whether his conservatism falls within the broad mainstream of contemporary jurisprudence and whether it is beyond the bounds,'' Johnson said after meeting with Alito in Washington.

:: David M. Wagner 7:03 PM [+] ::
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Credit where it's due: a good New York Times profile of Alito.

:: David M. Wagner 7:00 PM [+] ::
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Me in the Daily Standard: Alito and "Rational Basis"-- If the legislature is sane, the court should refrain!

:: David M. Wagner 10:06 AM [+] ::
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:: Monday, October 31, 2005 ::

Certiorari Sam!!

:: David M. Wagner 1:46 PM [+] ::
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A lot of Alito "songs" are making the rounds. Here's one of mine:

(tune: "Tradition")

And whom does Dubya pick
To mend his broken fence
And read the Constitution
With too-rare common sense?

Alito-o-o-o -- Alito!

:: David M. Wagner 11:04 AM [+] ::
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:: Saturday, October 29, 2005 ::

According to the Chicago Tribune's Jan Greenburg, it's down to Alito and Luttig.

:: David M. Wagner 11:17 PM [+] ::
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:: Friday, October 28, 2005 ::

Another Regent Law alumus blog: El Día, by Peter Gentala.

I'm also adding the formidable Manhattan Institute's blawg, Point of Law, to the roll.

:: David M. Wagner 5:32 PM [+] ::
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Brownback’s star rises as nominee falls

:: David M. Wagner 2:31 PM [+] ::
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:: Thursday, October 27, 2005 ::

According to Bloomberg.com, the President

is trying to balance competing calls for a woman or racial minority, a staunch conservative and someone who won't provoke a showdown with Democrats.

Earth to MSM -- Miers was forced down by a showdown with Republicans. Avoiding that is the first requirement of the new nominee. With 55 Senators plus the Vice President, we can Ted-Kennedy the Democrats (i.e., "cross that bridge when we come to it").

:: David M. Wagner 12:17 PM [+] ::
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Miers withdraws.

PFAW laments.

:: David M. Wagner 10:12 AM [+] ::
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:: Wednesday, October 26, 2005 ::

Well, well.

:: David M. Wagner 3:15 PM [+] ::
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:: Thursday, October 20, 2005 ::

Satire from RedState.org: Bush withdraws Miers, nominates the late Mr. Justice Sutherland.

I oppose this renominee, because he is unsound on separation of powers!

:: David M. Wagner 5:49 PM [+] ::
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:: Wednesday, October 19, 2005 ::

"Who is that guy on the Supreme Court and what has he done with the real David Souter?"

:: David M. Wagner 11:45 AM [+] ::
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:: Tuesday, October 18, 2005 ::

The backlash against "Whig" narratives comes to 20th century con law: here (at Volokh Conspiracy) David Bernstein reviews Ken Kersch's important book Constructing Civil Liberties.

:: David M. Wagner 4:09 PM [+] ::
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Now this is more like it, as far as it goes.

:: David M. Wagner 4:04 PM [+] ::
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:: Friday, October 14, 2005 ::

Among those cautiously optimistic about Harriet Miers, we may now count New York's Gay City News.

Also, the daily paper of Austin, TX -- I don't know about the paper, but the city of Austin is a glowing blue spot in a sea of Texas red -- which on the day before she was announced, editorialized:

Plenty of capable women are on the president’s short list, with Harriet Miers, a moderate Texas lawyer and former State Bar Association president, being among the most notable.

Hat-tip: Confirm Them, of course.

:: David M. Wagner 11:38 AM [+] ::
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:: Wednesday, October 12, 2005 ::

Many thanks to Professor Bainbridge for this mention!

:: David M. Wagner 2:22 PM [+] ::
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So, what's Dr. Dobson got to say for himself about his sudden notoriety in re the Miers nomination?

1. The "I know things I probably shouldn't" remark, he says, was made before Miers was announced, and referred to nothing more than the fact that her status as a front-runner had been disclosed to him. I'm now waiting for Paul Weyrich, who complained about the remark publicly, to confirm or dispute that Dobson made the remark only before, and never after, the Miers announcement.

2. More remarkably, Dobson says the White House told him that the other nominees took themselves out of the running!

"Well, what Karl told me is that some of those individuals took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter, that they didn't want to subject themselves or the members of their families to it."

Dobson said conservatives who are bemoaning the president's failure to "appoint so-and-so" to the U.S. Supreme Court may not realize that "those individuals didn't want to be appointed." He said Rove didn't name any names.

OK, I will now read off a few names of nominees who would have made the hearts of the President's base go pitty-pat: Jones; Rogers; Batchelder; Luttig; Garza; Alito; Estrada; Pryor; Easterbrook; Owen. I could go on, but ten is enough to make the point: are we actually being asked to believe that all ten of these asked not to be considered?

I had heard that Owen did so; perhaps the Sunday-school teacher did not feel up to going mano a mano with Schumer, Biden, and especially Ted Kennedy (eck, pooie). Can't blame her; and besides, some conservatives had reservations about her anyway. But that leaves nine others (plus more I did not name). Edith Jones is tough as nails and smarter than the entire Judiciary Committee put together, and Emilio Garza is a Marine. And they chickened out of a confirmation process? That's what we're being asked to believe?

EDITED TO ADD: ABC reports:

A senior administration official said it was "just a couple" of candidates who had withdrawn from consideration....

McClellan would give no names of candidates who withdrew but federal appeals court judge Priscilla Owen of Texas was reportedly one of them.

So, Owen (which we already knew) and one other. So, the other eight (or more)?

:: David M. Wagner 11:43 AM [+] ::
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:: Tuesday, October 11, 2005 ::

An Alert Reader in Washington points out that the National Right to Life Committee's statement on Miers was less than an endorsement.

:: David M. Wagner 6:08 PM [+] ::
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:: Monday, October 10, 2005 ::

Danielle Crittenden "reports" on HM's prep sessions for the hearings.

:: David M. Wagner 7:21 PM [+] ::
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I spoke yesterday with a conservative friend who shares a group house with a Leahy staffer. My friend reports that the mood in Leahy's office is "relief." I take it that means mine should not be.

:: David M. Wagner 5:04 PM [+] ::
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:: Sunday, October 09, 2005 ::

Our Hero seems to lend some support to Miers:

"There is now nobody with that [non judicial] background after the death of the previous chief.

"And the reason that's happened, I think, is that the nomination and confirmation process has become so controversial, so politicized that I think a president does not want to give the opposition an easy excuse [to say] 'Well, this person has no judicial experience.'"

"I don't think that's a good thing. I think the Byron Whites, the Lewis Powells and the Bill Rehnquists have contributed to the court even though they didn't sit on a lower federal court."

:: David M. Wagner 10:26 PM [+] ::
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:: Thursday, October 06, 2005 ::

In response to my post yesterday on how Bush's efforts to make Miers acceptable to the Right may end up making her unacceptable to the Left, and how it would have been more efficient to choose someone who was already unacceptable to the Left, "Publius" writes in to say:

That's assuming that POTUS and co. anticipated this kind of a reaction; it seems pretty obvious that they did not, even apart from some commenters at ConfirmThem who claim to be in the know confirming that they were taken by surprise. I'm guessing they thought the reaction would be similar to the reaction to Roberts: discomfort among some and opposition by a very few like Ann Coulter but overall support.

True, and it's mysterious. The nomination seems to reflect a profound misreading by POTUS of his own base, and he has not previously been prone to such misreadings.

One explanation, which I hope isn't true, is that he's so sure both of himself and of his standing among conservatives that he really thinks "Trust me" is going to settle it. Another explanation, more reasonable, is that he's saying in effect: "Look, I'm the POTUS who gave you Pryor, Brown, and Owen, and who tried to give you Estrada and Boyle, and who got you Pickering for a year anyway, and who got in the Dems' face by renominating all the judges the Dems had filibustered. I've made deposits in the cred bank on the judge issue. Now I want to write a check."

That's the best case I can see for "Chillin'".
However, The Washington Post reports today:

A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not.

Particularly interesting:

"The message of the meetings was the president consulted with 80 United States senators but didn't consult with the people who elected him," said Manuel A. Miranda, a former nominations counsel for Senate Majority Leader Bill Frist (R-Tenn.), who attended both private meetings.

-- which tends to stoke suspicions that confirmability, free of opposition -- opposition from Democrats, that is -- was the only criterion seriously applied after some minimal threshold of GOP inclination was cleared.

"The best nominee I could find," the President keeps saying. If he would say, even in private and through spokesmen, something along the lines of "Look, guys, my political capital is in the tank, this is not the time to have the big fight, for the following reasons....," then fine, we could have that debate. (Sen. Thune would take the other side.) But to try to insist, in private meetings as well as before the mikes, that he "could find" no potential nominee who was both more objectively qualified and more reliably conservative than Harriet Miers? So Jones, Garza, Luttig, Brown, Batchelder, and Estrada were hiding in the credenza?

EDITED TO ADD: Dobson is now hedging his previous support.

:: David M. Wagner 10:21 AM [+] ::
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:: Wednesday, October 05, 2005 ::

Concerns about Miers persist

Reuters
Wednesday, October 5, 2005; 4:13 PM

WASHINGTON (Reuters) - Concerns by conservative U.S. Senate Republicans about Supreme Court nominee Harriet Miers persisted on Wednesday despite President George W. Bush's assurances that his White House counsel is the best person for the job.

The President is being forced to argue to conservatives for Miss Miers's conservative reliability, a project which, to the extent it succeeds, will provoke opposition by Democrats.

Otoh, he could have nominated someone who came with conservative pre-approval. That, too, would have provoked opposition by Democrats -- but at least the President would not have been forced to expend time and political capital just to achieve that opposition. I mean, never mind qualifications -- wouldn't this have been the better course just from a time-management point of view?

:: David M. Wagner 4:43 PM [+] ::
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:: Tuesday, October 04, 2005 ::

What do you call those who are willing to "wait and see" about Harriet Miers? The Coalition of the Chillin'. (Hat-tip: ConfirmThem, which is considering changing its name....)

:: David M. Wagner 10:05 AM [+] ::
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Subject-line of mass e-mail from Ken Mehlman, RNC Chairman: "Harriet Miers needs your help." You don't say.

:: David M. Wagner 12:46 AM [+] ::
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:: Monday, October 03, 2005 ::

Well, so it really is Harriet Miers. My first take, before consulting the blogosphere:

Conservatives were not as up-in-arms over Miers in advance as they were over Gonzalez, but, if I read the blogs correctly, that's because we thought the Miers rumor was a joke; or, if serious, then merely a red herring to distract the bookmakers.

Now, she may actually be the best nominee since Thomas. Who knows? That Bush trusts her is a plus. But to turn to such a stealth nominee, when so much quality was available, and there are 55 Republicans in the Senate? If there was ever a time to appoint Jones or Garza or Luttig, it was now. Are we being asked to believe that the President had to go the way of stealth and cronyism in order to get a nominee through this Senate?

To me, it's irrelevant that she has never been a judge. Neither had Frankfurter, Black, Jackson, or Rehnquist, among others. Nor am I disturbed that her resume is silver or bronze rather than gold. There are too darn many Harvard Law grads on the Court already (yes, I know Our Hero is one, and so is the new Chief), and the Yale-Harvard-Stanford stranglehold on the Court is unnecessary and perhaps harmful.

No, my concern is not that there may now be an SMU grad on the Court. That's to the good. My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them. Assuming, that is, that it even wants to find them.

Let's see if anyone is more optimistic.

Krempasky at Confirm Them says:

We’ve got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, “With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court.”

Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.

Mr. President, you’ve got some explaining to do. And please remember - we’ve been defending you these five years because of this moment.

Otoh, Tim Carney tells us:

In 1993, after the ABA had voted to adopt a pro-choice stance, the State Bar of Texas, under Miers’ leadership, fought to have the issue put to a vote of the full ABA membership. She said:

“If we were going to take a position on this divisive issue, the members should have been able to vote.”

In favor of democracy on the issue of abortion? Let’s hope she carries that through.

And let's hope her objection to the ABA resolution was more than just procedural. In fairness, few lawyers got active in the fight against the ABA's pro-legal-abortion resolution unless they were themselves pro-life. It was a question of energy and motivation. So we can hope -- but we shouldn't have to.

:: David M. Wagner 12:24 PM [+] ::
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:: Tuesday, September 27, 2005 ::

Once again it looks as though the President is going to make a Supreme Court nomination while I'm out of town and in a condition of diminished internet access.

I will be, as matter of fact, with Justice Scalia. He is teaching a CLE on separation of powers, with Prof. John Baker, through the Federalist Society. "With" must be understood in context: I will be one of about 300 participants drinking in Our Hero's words and elbowing folks to get closer to him at the hors-d'oeuvre table. Been there, done that, doin' it again.

If I get a chance to ask him a question, it will be about the nondelegation doctrine, and whether his opinion for the Court in Whitman v. American Trucking means that it is in effect (if not in theory) non-justiciable.

I wonder if a lot of people will be pumping him for his views on Roberts and/or the next nominee. In a way I hope so, because he can't and won't answer such questions, and will therefore find my pedantic little concerns about nondelegation somewhat of a relief.

So anyway, sit tight, visit Confirm Them and other distinguished sites, and I'll blog at you when I blog at you.

:: David M. Wagner 3:56 PM [+] ::
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Indispensable stuff from Confirm Them:

* doubts about Owen
* a case for 4th Cir.'s Karen Williams (see comment 12, but note that Doug Kmiec is not pro-Roe; on that see comment 29)
* a cartoon

:: David M. Wagner 2:50 PM [+] ::
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"All walks of life"

You read it here yesterday. CNN now says:

As for minority candidates, Bush advisers are not ruling out former Deputy Attorney General Larry Thompson as one of the names on the short list.

But there's more than that to the story. We also read:

The officials also said the White House is mindful of the fact that Democrats have suggested they would filibuster female candidates Priscilla Owen and Janice Rodgers Brown.

Plus, CNN also says Edith Jones is out. That the President is cowering before filibuster threats when there are 55 Republican Senators is very disheartening. However, there's still more, and it's interesting:

Bush earlier in the day hinted he was leaning toward a woman or minority candidate.

"I am mindful that diversity is one of the strengths of the country," he said. "I have interviewed people in the past and thought about people from all walks of life."

This has been widely taken to mean that the finalists consist exclusively of women and minorities, which would be fine if the best female and minority candidates weren't being disqualified because of excessive harmony with the President's stated views.

But a closer look at what Bush said about "diversity" shows that he was considering not (or not only) sex and race diversity, but also diversity of "walks of life." If that means anything, its most natural meaning is that he's considering some people who aren't appellate judges or present or former high DOJ officials.

Law professors? Practicing attorneys?

Last time, before Roberts was announced on July 20, this thinking brought Harvard's beloved Mary Ann Glendon into the range of speculation. I humbly suggest that she is indeed being considered. Granted, I've about had it up to here with Harvard nominees, but there's no question Glendon has the kind of gold-plated resume and smoothness under fire that served Roberts so well.

And practicing attorneys? Well, at the risk of perpetuating the Harvard motif, today's featured mentionee on ConfirmThem is Miguel Estrada!

SENATE: But he has no judicial experience!
PRESIDENT: Well who the heck's fault is that?
SENATE: Yours, because you didn't turn over every memo he ever wrote in his entire life.
PRESIDENT: Well I didn't do that on Roberts either so eat my shorts.

One can dream.

:: David M. Wagner 10:00 AM [+] ::
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:: Monday, September 26, 2005 ::

Don't count Thompson out

The blogs are all saying the former Deputy AG Larry Thompson is now way down on the list. But a chain of communication four removes from the President has just brought me the (claimed) news that Thompson is "99.9" certain to be the choice. I do not assert that this chain is infallible, only that it includes knowledgeable persons and is asserted to go back to a recent conversation with the President.

I don't know much about Thompson's profile. Conservatives seem to be unexcited about him, but not apoplectic the way they are about Gonzalez. Use the contact button supra to e-mail me about this -- or anything else.

:: David M. Wagner 6:32 PM [+] ::
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Marshall, at ConfirmThem, comments on the politics of a Gonzalez pick.

:: David M. Wagner 6:04 PM [+] ::
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RedState says:

Word in legal circles is that Priscilla Owen is set to become the next justice appointed to the United States Supreme Court. Unfortunately, I have received reliable information late this afternoon that Karl Rove, among others, is making a last minute push for the President to consider Alberto Gonzales, despite previous assurances from inside the White House, Justice Department, and Senate that Gonzales was not being considered.

...Karl Rove “believes that Gonzales is conservative and, given the current docket, will have time to prove it before midterm elections.”

That's not good enough. Conservatives got one good year out of Souter (see Rust v. Sullivan), and more than that out of Blackmun.

The President might do better than Owen in terms of intellectual heft (Jones, Luttig) or the ol' Semper Fi spirit (Garza). But Owen is qualified and would make "the base" happy. Pick Gonzalez, or anyone who doesn't cause Chuck Schumer to split a gusset, and the base stays home in '06, Dems retake the Senate, Schumer dictates any '07 or '08 Court nominees, and the Dems retake the White House in '08. I can't believe Karl Rove doesn't see that, or doesn't care.

:: David M. Wagner 2:42 PM [+] ::
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The new name "buzzing" this morning is Judge Diane Sykes, 7th Cir. At least on first glance, she sounds good.

:: David M. Wagner 1:09 PM [+] ::
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:: Friday, September 23, 2005 ::

Spencer Abraham for the O'Connor seat? He's being touted by the chairman of the Michigan GOP, Saul Anuziz.

Abraham did not, as Anuzis claims, found the Harvard Law Review. What he founded was the Harvard Journal of Law and Public Policy, which soon after its founding merged with the then-nascent Federalist Society, and has flourished ever since as the Society's quarterly. Abraham is also ranked as one of the Society's founders. All this gives Abraham quite a legal resume (to go with his political one), without making him over a century old.

First Lebanese-American on the Court?

:: David M. Wagner 7:56 PM [+] ::
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:: Tuesday, September 20, 2005 ::

Reid announces against Roberts. The New York Times says (in a "news" story, as usual):

[W]ith a second vacancy on the court, Mr. Reid could be using his vote to send a message to the White House, which must replace Justice Sandra Day O'Connor, a critical swing vote on the court.

What message?

REID: Mr. President, nominate someone I like or I'll vote no.
BUSH: But you're voting no anyway.
(Pause)
REID [Gumby voice]: OH!

:: David M. Wagner 4:55 PM [+] ::
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The other nominee?

RedState says two names are in play: Edith Jones and Larry Thompson. "Yes," they write, "you heard it here. Edith Jones is in play and it is not just a conservative dream." If the list is literally down to those two, Jones fans should be on the edge of their seats, because Laura Bush is known to favor picking a woman.

Back on July 14, before John Roberts had been nominated for either seat, The Supreme Court Nomination Blog said Jones was "off the table" because of her critique of Roe in her special concurrence in McCorvey v. Hill. On the other hand, in the August 1 Weekly Standard, Fred Barnes reported that the President has got religion on the Court issue, and has built anti-Souter filters into his screening system.

The psy-war being directed against such resolution is intense. E.g., Specter's and Leahy's comments, and frequent "news analysis" remarks such as this in the L.A. Times: "a more contentious confirmation fight over Bush's pick to replace O'Connor — even if it ends successfully for him — could further damage the president at a time when criticism about Iraq, high gas prices and the federal response to Hurricane Katrina have weakened him politically."

To the same effect is a remark (also in a supposed news story) from the New York Times, reprinted here in the Contra Costa Times:

The shifting calculus reflects the increased stakes in replacing the retiring Justice Sandra Day O'Connor as the court's swing vote as well as the expectation that the new nominee will be measured against Judge John Roberts, who was hailed by both parties for his performance during almost 20 hours of confirmation hearings for the post of chief justice.

The shift also indicates that the administration expects some Democrats' pent-up frustration with what they labeled as Roberts' evasiveness to spill over into the hearings for a new nominee.

See? Roberts's reticence on speaking about issues likely to come before the Court, far from setting an example, is precisely what Democrats (and possibly Specter) will not let the next nominee do -- or so the NY Times wants Bush to believe.

Otoh, Ed Whelan at NRO has three reasons why the Roberts questioning process makes it more likely, not less, that the next nominee will be a conservative.

If Barnes and Whelan are right, Bush will remember that the GOP has 55 Senate seats. He can lose Collins and Snowe and three others and still confirm a worthwhile nominee. And that's not counting any red-state Democrats who could be brought over. A filibuster would probably be politically unsustainable in the case of a Supreme Court nomination, and in any event could be broken with the Constitutional Option.

Bob Novak says here (scroll down to "Filibustering Priscilla") that Sen. Reid has told the President Judge Owen would be filibustered if nominated. One hardly imagines Owen is alone on this list.

But again, I don't think a filibuster could actually be sustained for a Supreme Court seat; this is just more psy-war. PFAW et al. know that the best way to prevent a conservative from being confirmed is to prevent one from being nominated. While "Borking" can be fun, the Left is more concerned about who actually gets on the Court, and they know that with the current Senate, "Borking" can't be relied upon to work.

Related: MSNBC asks, Which Democrats will vote "yes" on Roberts? Their answer: Nelson (NE) and Pryor (AR). That doesn't mean they'd automatically vote for a conservative nominee for the other seat, but it would mean they are sensitive to pressures in that direction, that the opposition would have to expend resources to rein them in, and that their votes are gettable.

:: David M. Wagner 1:00 PM [+] ::
...

:: Sunday, September 18, 2005 ::

The Hill reports:

Conservative strategists are drafting a letter to Democratic members of the Senate Judiciary Committee demanding the release of hundreds of internal memos detailing contacts between the lawmakers and liberal interest groups opposing John Roberts’s nomination to the Supreme Court.

:: David M. Wagner 12:06 AM [+] ::
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:: Thursday, September 15, 2005 ::

Eve Tushnet -- as part of her unique fundraising campaign for Katrina victims (you give money to one of her designated charities, she will blog on a designated topic of your choice -- I think that's legal in DC!) -- has a fascinating post about Shakespeare's Iago, keyed to the current proudction at the Shakespeare Theater.

:: David M. Wagner 11:28 PM [+] ::
...

Ain't he cute? Dig that smile.

BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on. Did she, in fact, somehow compromise herself when she answered that question?

ROBERTS: She said no hints, no forecasts, no previews.

BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.
My question to you is: Do you agree with it or not?

ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript --

BIDEN: So did I.

ROBERTS: -- she took the position that she should not comment. Justice O'Connor took the same position. She was asked about a particular case.

BIDEN: Oh, Judge --

(CROSSTALK)

ROBERTS: She said, It's not correct for me to comment. Now, there's a reason for that.

BIDEN: But you're going from the --

SPECTER: Wait a minute, Senator Biden. He's not finished his answer.

BIDEN: He's filibustering, Senator. But OK, go ahead.

(LAUGHTER)

SPECTER: No, he's not. No, he's not.

(CROSSTALK)

ROBERTS: That's a bad word, Senator.

BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.

(LAUGHTER)


_______
ME: You'd think a legal epsilon like Biden would show more respect for an alpha like Roberts, but actually, no one who has watched him when he chaired the Committee -- scolding Thomas for believing in natural law, and Bork for not believing in it (there's different kinds of natural law, don't you know) should be surprised.

Back during the Thomas hearings, one of my sons, who was four years old at the time (young enough so that the obscene attacks went over his head), pointed to Biden on the telly and said, "The one with the hammer doesn't know what's going on."

:: David M. Wagner 10:55 PM [+] ::
...

Roberts's app ad double header:

KYL: There's a story, it may be apocryphal. If so, you can disabuse us of it now. But is it really true that you were required to argue a case before the Supreme Court on two day's notice and on that same day argued a case in the District of Columbia Circuit Court? Or is that not a correct story?

ROBERTS: No, that's the way it happened. I was scheduled to argue in the D.C. Circuit, and what happened is, the Friday before the Monday argument the clerk of the court called. We had a new lawyer who was not yet a member of the Supreme Court bar in the office, and I think we considered it kind of a pro forma matter.

We were moving his admission pro hoc vice so he could argue that day. And I think this was the Supreme Court's way of telling us that they didn't consider it a pro forma matter.

So we got notified the Friday night before the Monday argument that they were not going to grant the pro hoc motion, which is, of course, to let him argue the case even though he wasn't a member of the bar, and it fell to me to pick up that case, to be prepared to argue it Monday morning. Then in the afternoon I went and did the argument in the D.C. Circuit, which had been previously scheduled.

KYL: How'd you do in the two cases?

ROBERTS: Well, the court got it right in each case.

(LAUGHTER)

KYL: Enough said.

________
Intimidating. But consistent with what I saw, the one time I got a chance to watch Roberts in action (before this week, of course).

:: David M. Wagner 10:31 PM [+] ::
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:: Wednesday, September 14, 2005 ::

Gotta love the headline.

:: David M. Wagner 11:00 PM [+] ::
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Roberts: Griswold is about marital privacy; Court has taken it further

KOHL: Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?

ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) [presumaby "penumbras" -- DW] and emanations that were discussed in Justice Douglas' opinion. And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.

__________
Emphasis added. It will be interesting to see whether law profs's frantic phone calls to liberal Senators and staffers lead to closer grilling of the nominee on this point on the second round.

:: David M. Wagner 2:19 PM [+] ::
...

Robert Novak: "Speculation Swirls: Priscilla Owen Front-Runner to Replace Sandra Day O'Connor"

:: David M. Wagner 1:18 PM [+] ::
...

From transcript section 16:

SCHUMER: ...Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years.

ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...

SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom?

ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues.

___

ME: I think what he meant was, there's a big difference between a precedent being cited and a precedent being challenged. The continuing validity of Wickard -- challeged by at least one concurrence (Thomas) in Lopez -- was at issue in Raich. The role of Griswold in Lawrence, by contrast, was merely its now-customary place in the "privacy" string-cite that usually starts with Pierce.

:: David M. Wagner 12:21 PM [+] ::
...

BROWNBACK:...But so much of the time, and with our increased ability of genetic testing, they don't get here. Diagnosed in the womb, system that encourages this child to be destroyed at that stage -- and this is all in the records.

And we are the poorer for it as a society.

All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.

He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...

(LAUGHTER)

... but he kindly gives ties.

HATCH: It doesn't have to get personal...

(LAUGHTER)

BROWNBACK: And Jimmy said to me the other day after he hugged me; he said Shhh, don't tell my supervisor. They're telling me I'm hugging too many people.

(LAUGHTER)

BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here....

:: David M. Wagner 12:09 PM [+] ::
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:: Monday, September 12, 2005 ::

From a Wall Street Journal profile of Prof. John Yoo:

When he wasn't drafting opinions in the Thomas chambers, Mr. Yoo sometimes played squash with Justice Antonin Scalia, another conservative hero. Mr. Yoo says he didn't let the justice win, as some other clerks did. A Supreme Court spokeswoman says the justice recalls the matches but doesn't remember losing.

:: David M. Wagner 9:37 PM [+] ::
...

Over at OpinionJournal, Manuel Miranda catalogues the line-up on both sides of the Senate Judiciary Committee. Exquisite! Parts that it is beyond nature not to quote:

* Sen. Pat Leahy "will remind us that he was a prosecutor in earlier days (leaving out that it was in Vermont, and mostly of cow tippers)."

* Sen. Orrin Hatch "is under attack back home by a credible conservative challenger who points out that Mr. Hatch has authored hundreds of failed constitutional amendments and sponsored more legislation declared unconstitutional than any other Republican."

* Sen. Joe Biden "graduated near the bottom of his law school class, and he will show it in two ways: He will spend more time posing his questions than listening to the answers, and he will mention terms like 'constitution in exile' as if he were a scholar."

* Sens. Kohl and DeWine: "If PBS and C-Span viewers do not get a sandwich during Mr. Kohl's speech, they will during Mr. DeWine's."

* Sen. Schumer "will start with the premise that everyone in the room is there to see him.... As in his 2003 hearings, Judge Roberts will frustrate Mr. Schumer most, and he'll enjoy doing it."

* Sen. Durbin "is both the most insipid and the most ruthless member of the committee, if not the whole Senate."

* Sen. Brownback: "A rising star with social conservatives, Mr. Brownback is expected to speak truth to power...."

* Sen. Coburn "is perhaps the most fearless Senate Republican, and perhaps the most conservative. He has the advantage of being new to the committee and not wedded to its reindeer games."

Read the whole thing.

:: David M. Wagner 9:20 PM [+] ::
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:: Saturday, September 10, 2005 ::

"Blithering Idiot" has some extremely interstesting SCOTUS nominee suggestestions.

:: David M. Wagner 7:57 PM [+] ::
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A Regent Law student blogger. Besides how to brief cases and some of the elements of a contract and a tort, he has also learned that "truck beats car."

:: David M. Wagner 7:50 PM [+] ::
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:: Wednesday, September 07, 2005 ::

Judge Alito again mentioned as possible Supreme Court nominee.

It would be great to have "Scalito" on the Court. Btw, one of Judge Alito's very recent clerks tells me that the judge is, in this clerk's experience, the only man he's met in the upper echelons of law who genuinely possesses the virtue of humility -- not the kind of backslapping niceness that masks a huge ego, but the real thing.

His only "issue" is that when Planned Parenthood v. Casey hit the 3rd Circuit, Alito was the only panel member to vote to uphold all the regs, including spousal notification, the only one the Supreme Court ended up disallowing. His answer, at his hearings, should be: "That's what the legislature decided, and I believe in showing respect for the legislature, don't you, Senator Specter?"

NOW and NARAL will buy loud ads saying the world is ending, but they're doing that to Roberts too, and nobody believes them.

:: David M. Wagner 11:22 AM [+] ::
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:: Tuesday, September 06, 2005 ::

A student asked me this morning whether I was disappointed that Our Hero didn't get the nod for Chief. No, and for the same reason I never thought he would be chosen. The job doesn't play to his strengths at all. It would pressure him to get "moderate," as it did to Rehnquist; and it comes with a bag of administrative responsibilities that would unacceptably divert him from his mission of explaining the Law and proclaiming the Truth.

Similar reasons go for Justice Thomas as well, who, I'm just sure, would love to sit down again at that ol' witness table in 325 Russell and talk about ol' times with Joe Biden. Yup.

No, let them do what they've been doing. If Roberts fits the emerging picture -- a "minimilist" conservative with bonhommie coming out his ears -- he'll make a perfect Chief.

Meanwhile, on the Other Seat Watch: the standard list from last July is being endlessly repeated. A Wall Street Journal editorial today mentioned most of the possibilities I did, but regreattably leaving out Garza, and adding Wilkinson and McConnell. I'm not sure what Wilkinson has done to justify the high regard in which conservatives are constantly said, by the msm, to hold him. As for McConnell, I'd support him, but quite frankly, for me he's a B-lister because he would mean the end of Smith, which I think was rightly decided and very important, as I ranted here.

Edith Jones is widely mentioned, but Red State wonders if all that mentioning isn't perhaps just to keep conservatives happy. Chowderheaded strategy, if so, because conservatives will either be happy or not when the nominee is announced. If it isn't Jones, they won't be a bit happier for having been teased with the possibility, I'm here to tell you.

Red State also says fuhgeddabout Janice Rogers Brown b/c she's just too conservative. Otoh, she's an African-American woman from a Katrina-affected state.

Newsmax, but no one else, is mentioning Senator Mel Martinez, R-FL.

:: David M. Wagner 11:10 PM [+] ::
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:: Monday, September 05, 2005 ::

The Hill: Conservatives Told It Won't Be Gonzales. Mentioned: both Ediths, plus Owen, and Michigan Supreme Court Justice Maura Corrigan. (A quick googling of Corrigan reveals nothing except that she is considered conservative by the Michigan media, joined liberal colleagues in turning aside a Lake Michigan property rights claim and criticized conservative colleague Steve Markman for his strong dissent, and often rules in favor of insurance companies. That's not enough. State judges are not what we need here. Bush can do better.)

:: David M. Wagner 2:39 PM [+] ::
...

Into a nearby phonebooth: Terry Eastland on Sen. Specter's "superprecedents" and "super-stare-decisis." Able to judicialize tall sectors of politics in a single bound.

:: David M. Wagner 1:44 PM [+] ::
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Gawrsh, I was right -- Roberts is "chiefy"!

:: David M. Wagner 1:40 PM [+] ::
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:: Sunday, September 04, 2005 ::

REHNQUIST.

A Nixonian law-and-order kind of guy, he was Nixon's only success, in four Court vacancies, in appointing a consistent conservative. Once there, he often took on the role of the isolated dissenting prophet of the conservative vision, a role he later passed on to Our Hero, who arguably has now (in part) passed it on to Justice Thomas.

I thought he was sometimes quite wrong. It was a shame, for instance, that in Maryland v. Craig, in his law-and-order zeal, he failed to see the luminous correctness of Justice Scalia's original-intent dissent. But, for having originally and consistently stood as a bulwark against Roe, Rehnquist has earned the praised of what one hopes will be wiser generations of the future.

Thoughtful liberal academics are noting the late Chief's abilities. UVa's A.E. Dick Howard says:

The next chief justice, whether chosen from within or outside the court, has a very high mark to follow. Ideology aside, it's going to be difficult to run the court any better than he did. We will look back on the Rehnquist court as one of the smoothest in the court's history.

One hopes (but scarcely believes) that liberals are embarrassed by the antics of Alan Dershowitz, who barely waited for the body to get cold before uncorking all the slanders that were aired, to no avail, when Rehnquist was elevated to Chief. OpinionJournal writes here about Dershowitz's "jaw-dropping performance."

Whom should Bush nominate -- and should he switch Roberts's nomination to Chief and then pick someone else for the O'Connor seat? Roberts strikes me as a "Chiefy" type.

A non-white non-male? By all means. EDITH JONES! EMILIO GARZA! PRISCILLA OWEN! JANICE ROGERS BROWN!

The New York Times mentions Brown here.

Emily Bazelon writes at Slate that Gonzalez is now a possibility because conservatives have been thrown their bone with the Roberts nomination. WRONG-O.

I'm not among those arguing Roberts isn't conservative enough, but he certainly has not left much of a conservative paper-trail, and alternatives who did were available. The biggest fear of conservatives, re S.Ct. nominations, is that the Left will succeed in setting up Roberts as the right-most edge of possiblity. Bazelon's column illustrates this perfectly.

We'll hear a lot in the near future: "You got Roberts, what more could you want?!" The answer: Jones. Luttig. Garza. Alito. Owen. Brown. Roberts is good, but he doesn't set conservatives dancing in the streets. His cautious career demonstrates that he never really wanted to. Thought his bread was better buttered without all that, no doubt. Fair enough. But it would be a mistake for the Bush Administration (a) to think of conservatives as an interest group demanding goodies, and (b), if it commits mistake (a), to think Roberts is goodie enough.

For Bazelon, Edith Clement is "relatively palatable" (that should be the kiss of death right there), but other women eligible for the High Court -- she specifically names Jones, Owen, and Brown -- are "dragon ladies." Whoa! MRAIRRRRRR! Velvet, Emily, velvet! Good kitty. Now. Why are these ladies so unpalatable to you?

Owen and Jones don't simply oppose abortion; they've expressed deep disgust for the procedure itself and the feminist principles it symbolizes.

I'll leave it to Mrs. Roberts and her colleagues at Feminists for Life to debate whether an ideology that despises fertility is really feminist. I'll only note here that even proponents of its continuing legality have "expressed deep disgust for the procedure itself," and that feeling that disgust (whatever conclusions you may draw from it) should be a threshold requirement for "judicial temperament."

:: David M. Wagner 9:01 PM [+] ::
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:: Tuesday, August 30, 2005 ::

The audacity of Jones' reply is truly remarkable, given that the political costs this administration has incurred in promoting the interests of fundamental Christians in general and Bob Jones University in particular. A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head.

-- John Roberts to White House Counsel Fred Fielding, Jan. 4, 1984.

I might have dropped "go soak his head," but "audacity" and "petulant paranoia" sound about right to me, given the context supplied here by Newsmax, a source not likely to be biased against the author of the letter Roberts was referring to.

:: David M. Wagner 3:43 PM [+] ::
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And what in the world is a 'moderate' interpretation of a constitutional text? Halfway between what it actually says and what we would like it to say?

-- Justice Scalia at Chapman University School of Law; courtesy of blogger Alex, USMC, at Law and Ordnance.

:: David M. Wagner 2:14 PM [+] ::
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:: Thursday, August 25, 2005 ::

I wish George Stephanopoulos wouldn't make such embarrassing statements.

:: David M. Wagner 6:38 PM [+] ::
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:: Tuesday, August 23, 2005 ::

Cody Herche at Legal Redux gives me a kind mention on the issue of Roberts and Romer.

Having recently published here some dubitando material about Roberts, let me mention this about his involvement in Romer. There's a tendency to react to his five-hour moot-court participation as though it were tantamount to joining, if not writing, the actual opinion that came down in that case. This is an unwarranted leap, since the Court's opinion was broader than necessary. Not that I agree with this, but the Court could have viewed Amendment 2 as a strange new form of class legislation, void under Equal Protection without either heightened scrutiny or a finding of "animus."

Is there a tape or transcript of that mooting session out there? If there is, and it surfaces, we'll really have something to pick apart. I expect it would show that Roberts did not at any point, directly or indirectly, suggest that counsel adopt as its theory of the case that the voters of Colorado are a bunch of bigots who can't act rationally even when (or who act irrationally especially when) deliberating over a state constitutional amendment. That's what the Court held, but I see no reason to think it's what Roberts coached counsel to say, and much reason to think it would be a very alien line of argument to him.

:: David M. Wagner 4:27 PM [+] ::
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:: Monday, August 22, 2005 ::

Captain's Quarters reports: In 1985 Roberts exhibited soundness of the 1977 Additional Protocol to the Geneva Conventions, which would have extended the privileges of combatant status to unlawful combatants. Hat-tip: NRO Bench Memos.

:: David M. Wagner 1:54 PM [+] ::
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:: Saturday, August 20, 2005 ::

The August 29 print National Review contains the most tepid endorsement of Roberts consistent with not opposing him:

....We hope that his nomination does not preclude future nominations of conservative jurists whose philosophical commitments are more overt.

But to the extent we can glean his legal philosophy, we like what we see....

In the same issue, Judge Bork writes:

My real question for John Roberts is not whether he was an active member of the Federalist Society but why he wasn't.

Ready for some good news about Roberts as a cultural conservative, and as capable of a Scalian snarky turn of phrase? Powerline reports on his views on Michael Jackson. Commenting from his perch at DOJ on the advisability of President Reagan giving an award to "Michael," Roberts wrote:

If one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones to prevent voice change, mono-gloved, well, then, I suppose 'Michael,' as he is affectionately known in the trade, is in fact a good example. Quite apart from the problem of appearing to endorse Jackson's androgynous life style, a Presidential award would be perceived as a shallow effort by the President to share in the constant publicity surrounding Jackson.

:: David M. Wagner 2:23 PM [+] ::
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:: Friday, August 19, 2005 ::

The August 15 print edition of Human Events has arrived, and its theme appears to be Bad Stuff About Roberts. I blog this because I've been sunny about Roberts so far, and because I am haunted by the memories of the backflips I did when Justices Kennedy and Souter were going through their confirmation hearings. I feel I need to put a little pessimism on the record.

1. To the Romer moot-courting, add some for Playboy.

2. Did the Reagan Justice Department ignore Sandra Day O'Connor's pro-abortion voting record as an Arizona legislator? Roberts advised on the spin.

3. Still feeling good because of all those "conservative" things the nominee has been caught saying over the years? Ann Coulter has done some research and dug up some equally "encouraging" quotes by David Souter when he was AG of NH.

(Otoh, make what you will out of the grab-bag of old memos supplied by Bloomberg News here.)

Have a nice weekend. And remember -- for all you know, this post may be part of a plot by Karl Rove to divide and demoralize the Left.

:: David M. Wagner 3:38 PM [+] ::
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:: Thursday, August 18, 2005 ::

Sen. Trent Lott has just published a score-settling book. What grabbed me in the CNN write-up about it was this, near the end:

Later, as a law student at the same school [i.e. the Ole Miss], he remembered the visiting professors from Yale University, brought in to teach constitutional law.

"Instead of making us more liberal, they helped create a generation of thoughtful, issue-oriented conservatives who grew up to run Mississippi politics," he wrote.

Yes, Mother Yale gets the job done!

:: David M. Wagner 9:37 PM [+] ::
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:: Tuesday, August 16, 2005 ::

Headline in New York Newsday: Nominee Roberts, in '84, called equal pay for women 'radical'

No he didn't. What he correctly called "radical" was the then-voguish theory of "comparable worth." Unlike "equal pay for equal work," the CW theory admitted that the types of work being compared were not the same, but then held that since they were of "comparable worth" they should be compensated equally. Obviously, the critical questions of which jobs were "comparable" in "worth" to which others would have been answered by a new bureaucracy called into existence by legislation implementing the CW theory.

CW was laughed off twenty years ago, and not just by John Roberts. Until it became a question of attacking Roberts as a Supreme Court nominee, no one in twenty years has tried again the absurd move of equating "equal pay" with "comparable worth."

CW did, however, make one valuable contribution to culture. It called forth a headline by Adam Wolfson, in an article in Policy Review: "Shall I Compare Thee to a Plumber's Pay?"

:: David M. Wagner 5:44 PM [+] ::
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:: Monday, August 15, 2005 ::

John Shelby Spong, the anti-Biblical polemicist who somehow spent 24 years as Episcopal bishop of Newark, during which time the Episcopal Church in Newark shrank by 40%, says in a recent interview:

I really resent having the Christian faith being taken over by people who identify with hating gay people and abortion rights. The public face of Christianity is being shaped by Pope Benedict XVI, Pat Robertson and Jerry Falwell."

Point of personal privilege: my faith has not been shaped by Jerry Falwell!

:: David M. Wagner 11:51 PM [+] ::
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:: Friday, August 12, 2005 ::

Well, I guess this spares me the trouble of fisking the NARAL ad.

Thing is, though, it was no more dishonest than many of the ads, op-eds, and Senate speeches used against Bork. Lots of them followed the same script: focus on a dislikeable person or act on the side the nominee advocated for, or ruled in favor of, and then declaim based on the assumption that the nominee personally embraced that person or act.

It looks like NARAL has actually been dealt a setback by msm folks who are ordinarily its friends. Of course, it may be a set-up, designed to make later attacks on Roberts (whether by NARAL or anyone else) look honest by comparison.

Or, this may all really be about the next nominee, not about Roberts. Bob Novak:

NARAL's approach was not meant to sway the Senate but to pick off nervous Democrats and perhaps a Republican or two, keeping Roberts as close to 60 votes as possible. The president and his closest advisers then would have to ask themselves: If a nominee as squeaky clean as John Roberts cannot do better than this, can we risk nominating another conservative for the next vacancy?...

Luttig, Jones or Owen going on the court would cement a conservative majority. Any one of them likely would trigger a filibuster, either for chief justice or to replace Scalia, and the "nuclear option" might have to be pulled out of the closet for confirmation. Liberal hopes for Bush missing this golden opportunity could depend on how many Senators vote against Roberts, and that is reason enough to smear him as an abortion bomber.

:: David M. Wagner 12:31 AM [+] ::
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:: Monday, August 08, 2005 ::

So, how's the Roberts nomination faring?

Generally: I think the "lesson learned" from '87 is that you're much more likely to win if you fight back. Somehow I doubt that would be news to Sun Tzu or Clausewitz, but apparently it was to Strom Thurmond, Orrin Hatch, Tom Korologos, and even, dare I say it, Robert Bork and Ronald Reagan.

Case in point: in '87, National Review did an excellent cover story (by my son's godfather Richard Vigilante) about how great Bork is. This year, it did an equally fine cover story on what a buffoon Chuck Schumer is. See the difference? They're the issue this time.

OK, let' s round up some reactions to the nomination.

Ann Coulter reads it as a "stealth nomination." I love Ann and I know that to disagree with her requires activating the invecto-deflecto-shield. But there's at least one huge difference between Roberts and all three of the past GOP nominees who could be considered "stealth" -- O'Connor, Kennedy, and Souter. The difference is Washington experience. Roberts has it; so did Rehnquist, Scalia, and Thomas at the time of their appointments. When you come to a high federal position from Sacramento, Phoenix, or the White Mountains, it gets to you. When you've been there for over twenty years, you've been there and done that.

Of course it matters what you've been doing during those DC years. In Roberts's case, to judge from his older memos that have been surfacing as part of the Reagan Archives, it appears he engaged in a number of rightwing snarkfests -- just like certain other young convervatives who came to Washington in those heady days, mentioning no further names. Click here and here.

Then there's folks in a tizzy because Roberts once tossed in five pro-bono hours' worth of moot-court participation on the wrong side in Romer v. Evans. Come on, guys. Doing such a favor for one of your firm's clients is part of life in big Washington firms, especially when you are -- as Roberts is -- a world-class moot-courter.

Second, and more importantly, this wasn't Lawrence, it was Romer. Ultimately I have no doubt as to the utter wrongness of the Court's opinion striking down Colorado's Amendment 2, nor as to Amendment 2's constitutionality under the 14th Amendment, but all should admit that a state constitutional amendment that places a category of citizens at a political disadvantage in pursuing favorable legislation is kind of a new animal in the constitutional zoo. It merited a close look and maybe a "Huh?" It was not just "gay rights," up or down. There were and are good arguments on the other side.

Most conservatives are cluing in about this. Tony Perkins of the ever with-it Family Research Council issued this statement.

Perkins alludes to a controversy about "the motives behind one of the main sources of the LA Times story who is no longer with the law firm and is now with a left-leaning advocacy organization in Washington." The Washington Times reported:

"The goal of the left here was to try driving a wedge between conservatives and a nominee," said Leonard A. Leo, a conservative lawyer working with the White House to confirm Judge Roberts. "They have failed."

According to the Times, the source, former Hogan & Hartson attorney Walter A. Smith, said:

"This is somehow a plot to hurt John?" he asked incredulously. "How does this hurt him?"

Oh, how cute. Imagine, a Washington lawyer and activist not knowing that a divided and uncertain pro-Roberts coalition would be more vulnerable to the filibuster strategy than a united one, and that in the wake of a rejection on Roberts, Bush would probably have less appetite for a fight rather than more.

Actually, I can't imagine such a thing at all. But I can imagine the tactic not working, and I think Leonard Leo is right about that.

:: David M. Wagner 7:55 PM [+] ::
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:: Wednesday, July 20, 2005 ::

ROBERTS!

Real quick, since I'm at the Southeast Association of Law Schools conference on Hilton Head, life is rough, yeah yeah I know.

I've seen Judge Roberts in action at an appellate argument, and he is an awesome lawyer. He is not, afaik, closely associated with specific interpretivist and/or conservative positions, but he has been an advocate in conservative administrations.

His philosophical credentials my at first glance seem less than Justice Kennedy's (Kennedy used to represent the California Catholic bishops on life issues back in Sacramento, didn't he?), but otoh Roberts has one thing that has been proved necessary for reliability on the Supreme Court: Washington experience. Not to put too fine a point on it, if they were gonna get him, they'da got him.

More as we go on.

:: David M. Wagner 9:42 AM [+] ::
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:: Monday, July 18, 2005 ::

Nomination expected soon; the name of Mary Ann Glendon begins to surface. "Glendon of Oz, the Good Witch of the North," I've always called her!

:: David M. Wagner 9:39 PM [+] ::
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:: Saturday, July 16, 2005 ::

D.C. Circuit, in suit brought by congressmen, holds FEC must issue tougher regs under McCain-Feingold.

Oh boy, the issues for appeal:

* legislator standing
* nature and degree of deference due to agency interpretation of statute
* power of courts to remands regs to agency after Whitman v. American Trucking
* The First Amendment, in case anyone still cares about that, which in the McCain-Feingold context it appears they don't.

:: David M. Wagner 3:16 PM [+] ::
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No Rehnquist resignation.

Casebookmeister Doug (click here for casebook) says at NRO that this is good because "every factor in the nomination process was going to use multiple vacancies to politically horse-trade to the ultimate disadvantage of the integrity of the Court."

Lyle Denniston says: "This puts all of the emphasis on O'Connor's replacement, and will likely increase the demands of his strongest political followers that he put forward a presumably reliable conservative[.]" Human Events profiles the groups that constitute the presumed anti-nominee players.

:: David M. Wagner 2:52 PM [+] ::
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:: Wednesday, July 13, 2005 ::

Various sources are reporting Bush's remarks that he might consider someone not presently a judge.

In The New York Times's piece on this theme, we also read:

Democrats were said by two officials familiar with what took place on Tuesday to have broached the names of at least three judges of Hispanic background who they believed had a strong chance of being approved without a tumultuous confirmation fight: Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit, Judge Edward Prado of the United States Court of Appeals for the Fifth Circuit and Judge Ricardo H. Hinojosa of Federal District Court in Texas. Mr. Leahy would not confirm that those names were mentioned, but said he saw them as strong candidates. These particular judges have not been among the top possible nominees mentioned by Republican allies of the White House.

Emphasis added. Since Hinojosa's name has now come up, I am at liberty to mention something told me by another blogger who wishes to remain pseudonymous but whom I trust, specifically, that a person or persons unknown reached his blog via the search string "Ricardo Hinojosa gay." My friend stresses that the search turned up no evidence to support the implied rumor.

:: David M. Wagner 5:17 PM [+] ::
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"Rehnquist hospitalized for fever." No word on whether he is being given an MRI to see whether he plans to resign.

A Caspar WY paper touts Colorado Supreme Court Justice Rebecca Love Kourlis, a "moderate Republican" (which usually means abortion enthusiast) appointed by a Democratic governor. Note that the kind words from the office of the present Republican governor, Bill Owens, are as warm as day-old tea. Let's hope this is mere stroking of Sen. Ken Salazar (D-CO), the way Reagan and Bush I used to stroke D'Amato (who shouldn't have needed stroking, but what the hey) by pretending to consider 2nd Circuit Judge Roger Miner.

:: David M. Wagner 5:06 PM [+] ::
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:: Tuesday, July 12, 2005 ::

Back to the Ten Commandments issue

With Supreme Court rumors temporarily locked into a holding pattern, let's go back to MacReary, the decision striking down the Kentucky courthouse display of the Ten Commandments.

The opinion by Justice Souter for the Court breaks no new ground, but it clarifies the state of play. It is based on three pillars: original intent, precedent, and religion as divisive.

1. Original intent. Justice Souter virtually concedes that there is substantial evidence of noncoercive governmental endorsement of Christianity in the founding era, but insists that by tossing Jefferson's refusal to issue a Thanksgiving proclamation into the mix, and tossing in after it some second thoughts by the aging and long-retired Madison, he can flip the original intent factor over to his side. According to him (and I guess the Court, at least for now), evidence of public secularism by the Founders supports his point, while evidence of their public Christianity only means "Homer nodded," as Souter puts it, quoting from his own Weisman concurrence.

2. Precedent. Boils down to: Even if we've been getting the Establishment Clause wrong for 58 years, still, 58 years is a long time, and stare decisis, you know. Actually it's hard to see that many expectations have formed in reasonable reliance on Everson and its progeny; to the contrary, local governments will keep putting up all these sodding creches and Commandments displays, won't they? It seems that far from relying on Everson and Lemon et al., people are relying on their eventual overruling. But never mind.

3. Religion is divisive. This is a regularly recurring trope in the Everson line, especially in McCollum (with only Zorach as an unexpected exception). Oh, the rivers of begged questions:

* Is religion always divisive? Was Scalia wrong in arguing that the graduation prayers in Weisman were a unifying experience, multicultural in the best sense?

* Even if religion is always divisive, does that have anything to do with the text we're supposed to be interpreting? That text's commandment (so to speak) is: don't set up a state church; not, keep all public space antisceptically secular.

* Even if religion is always divisive and the Establishment Clause licenses the Supreme Court to enforce the consequences of that 17th century insight (generally seen as derived from the Thirty Years War and the Peace of Westphalia), does keeping public spaces rigorously secular, by court order, really conduce to religious peace? Does anyone think religious tensions were lessened in McCreary and Pulaski Counties, KY, by the Court's decision? I have no reason to think they were actually inflamed by it, but neither is there evidence that they were inflamed before, unless the litigation itself proves religious inflamation. After the McReary decision, however, one must assume that Christians in those counties are angry. Funny how making Christians angry is so often seen as the way to prevent "religious divisiveness."

:: David M. Wagner 11:39 AM [+] ::
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:: Monday, July 11, 2005 ::

Could somebody have read my Standard op-ed? The Baltimore Sun reports: White House in no rush to pick court nominee.

:: David M. Wagner 3:39 PM [+] ::
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Drudge: REVEALED: INSIDE A MOVEON SUPREME COURT HOUSE PARTY; TAKE 'BUSH LIAR' T-SHIRTS OFF

:: David M. Wagner 12:45 AM [+] ::
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:: Friday, July 08, 2005 ::

The Daily Standard:
Toss Away the Left's Schedule Sheet
Why the president should wait to announce his Supreme Court nominee(s).
by David M. Wagner
07/08/2005 3:00:00 PM

:: David M. Wagner 4:40 PM [+] ::
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:: Thursday, July 07, 2005 ::

Sobering. Novak says:

1. Rehnquist will probably resign too, making the announcement within days.

2. Bush is personally piqued by criticisms of Gonzalez, and could nominate him just to show he sticks by his friends. If there are multiple vacancies, this is all the more likely, but also less destructive, assuming the other nominee is from the A-list (Alito, Brown, Garza, Jones, Luttig, Owen, Roberts).

While the Democratic huff-and-puff has been about the advice-and-consent function as an ideological check (by the left against the right, not the other way around, cf. confirmation process of Ginsburg, Breyer), Novak -- with Gonzalez foremost in his sights -- reminds us of what the Senate's role in Supreme Court appointments is really about:

The Founding Fathers put the Senate ''advise and consent'' clause into the Constitution partly to combat cronyism. In Federalist No. 76, Alexander Hamilton opposed the president's nominees ''being in some way or other personally allied to him.'' Thus, the wonder in Washington is that a peeved Bush would defend Gonzales' selection on grounds of personal pique. So much is at stake in these Supreme Court nominations that surely the president must realize this situation transcends loyalty to a friend.

:: David M. Wagner 10:48 PM [+] ::
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:: Wednesday, July 06, 2005 ::

Drudge: SEN. SCHUMER CAUGHT ON CELLPHONE: 'WE ARE GOING TO WAR' OVER SUPREME COURT.

Since Schumer isn't waiting for a nominee, here's a strategic suggestion for the administration: make Schumer -- and Teddy K. -- the issues. Especially if it's a pleasant-looking nominee like Emilio Garza. "Hey America, do you like this guy, or one of these guys?

Actor-politician Fred Thompson has already been chosen to lobby the Senate for the nominee (again, w/o waiting for a nominee announcement).

:: David M. Wagner 4:11 PM [+] ::
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:: Friday, July 01, 2005 ::

Drudge:

Sen. Arlen Specter, the Republican head of the Senate Judiciary Committee that will take up the nomination, said he would hold hearings in August if necessary. "The judiciary committee is prepared to proceed at any time," he said.

:: David M. Wagner 8:19 PM [+] ::
...

Justice O'Connor's resignation letter: her resignation is to be effective upon the confirmation of her successor, so apparently, if this administration messes up confirmation politics as badly as it messed it up (mainly by doing nothing all summer) in the case of Judge Bork, and it takes until February to confirm a successor, then O'Connor will be on the job and functioning until then.

Meanwhile, The Washington Post says:

The White House said later no announcement will be made until the president returns from the G8 summit in Scotland. He is scheduled to return on July 8.

Now, me, I can't see any reason to name a successor any time before Labor Day. That's long enough before the first Monday in October to give the Senate time to do a serious and proper advice-and-consent job, the more so since both "sides" already have thick files on all possible nominees. What a Labor Day announcement does not leave time for is a concentrated, professional, grass-roots campaign against one particular nominee. And the White House shouldn't leave time for that.

If a nomination is announced earlier, it should only be because either or both of two conditions prevails:

* Sen. Specter has promised to hold hearings during the summer, rather than waiting until September, and there are political hostages to make sure he keeps that promise;

and

* Activist groups supporting the President's nominee are organized and ready to go this time, in a way they weren't in 1987.

:: David M. Wagner 1:03 PM [+] ::
...

O'CONNOR RESIGNS.

:: David M. Wagner 11:38 AM [+] ::
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:: Monday, June 27, 2005 ::

Our Hero, concurring in Van Orden: "I join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence–or at least the Establishment Clause jurisprudence we currently apply some of the time."

Caution -- snark-infested waters! Some fun reads today!

Btw, here is the entirety of O'Connor's dissenting opinion in Van Orden: "For essentially the reasons given by Justice Souter, post, p.___ (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., post, at ___, I respectfully dissent." A tree died for that?

:: David M. Wagner 12:34 PM [+] ::
...

Only half-right about Van Orden: it did come out the other way, but the swing vote was Breyer, not O'Connor. Here are links to the opinions: McCreary County v. ACLU, and Van Orden v. Perry. (Many thanks to the Cornell Law School's Legal Information Institute, and please send them money.)

:: David M. Wagner 12:27 PM [+] ::
...

Well, I was right on the outcome of Van Orden. Apparently it's so split, we may have to play Follow The Concurrence for a while before we know exactly what Justice O'Connor did. Veteran Court journalist Lyle Denniston (whom I knew slightly at DOJ, and he was no spring chicken then!) says:

Chief Justice Rehnquist announced the second decision on a religious display, finding no constitutional violation in the placement of a Ten Commandments monument on the grounds of the state capitol building in Austin, Texas. That decision was widely splintered. Announcing the votes of the various Justices, Rehnquist quipped -- to widespread laughter -- that he did not know there were so many Justices on the Court.

:: David M. Wagner 11:03 AM [+] ::
...

While waiting for the Van Orden decision, I'm going to predict it will uphold the Texas display. Two reasons:

1. O'Connor was the swing vote in McCreary, and she likes to do the Grutter/Gratz two-step.

2. She may particularly wish to do one here if she perceives, as I think is the case, that if the secularists sweep a double-header today, it will be too deep a draw-down on the Court's public credibility. Otoh, if such a double sweep does occur, it might be an advantage for Republicans in a (still-hypothetical) confirmation battle this summer or (more likely) fall.

:: David M. Wagner 10:56 AM [+] ::
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BREAKING: Supreme Court rules against Ten Commandments in courthouses. More as the rubble piles up.

UPDATE: From CNN --

WASHINGTON (AP) -- A split Supreme Court struck down Ten Commandments displays in courthouses Monday, ruling that two exhibits in Kentucky cross the line between separation of church and state because they promote a religious message.

The court's decision was 5-4, with Justice Sandra Day O'Connor casting the swing vote.

That would be the McCreary case. Van Orden is still to come as of this writing.

:: David M. Wagner 10:18 AM [+] ::
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:: Friday, June 24, 2005 ::

Brave New London: more on Kelo

Our local paper gets it: in its print edition this morning (not online), the Virginian-Pilot's headline ran: "City Has Plans For Your Home: Start Packing!"

Say, you don't suppose Kelo is the Supreme Court's response to the "housing bubble," by any chance? You know -- put the guvmint a check away from owning anyone's house, and housing values just have to go down, don't they?

But that's not all: the lower home values go, the more tempting the use of eminent domain will become. Soon every square foot of the country that isn't a national park or a wetland will be occupied, not by socially wasteful private homes, but by job-creating, revenue enhancing businesses!

But wait -- the people who get those jobs -- where will they live? Not a problem: Walmart, Pfizer, et al. will put up tall, efficient apartment blocs right next to their workplaces. Or right above them, so that workers can elevator-commute and not pollute! Solves trafffic problems too, see?

Eventually the whole nation will look like East Germany in the '60s, except it will be a business-goverment alliance, rather than a means-of-production-owning state, that will be in charge.

Those Framers, with their 18th century notions of property rights -- what were they thinking?

:: David M. Wagner 12:47 PM [+] ::
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:: Thursday, June 23, 2005 ::

Kelo: O'Connormania

That's quite a performance in the principal dissent in this morning's disastrous Kelo decision! Justice O'Connor is not known for staking out broad philosophical ground, and neither Justice Scalia nor the Chief is known for invoking natural law. Yet the dissent written by O'C and joined by the others and Thomas opens with nothing less than Justice Chase's hymn to natural-law judging from Calder v. Bull!

Here it is, as cited by O'C:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Now, to be sure, O'C cushions this quotation so as to make it sound as though Chase were construing the Bill of Rights. She does this be prefacing the quotation with:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote....

But fans of Major League Natural Law-ball will see past this veil that O'C modestly draws over her reversion to First Principles.

With humility very rare in any high governmnent officeholder, she acknowledges "errant language" in an opinion she herself wrote, namely Midkiff, which the majority relies on and extends:

There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U.S., at 32. From there it declared that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U.S., at 240. This language was unnecessary to the specific holdings of those decisions....

It's so good to read an O'Connor dissent that gets a little hot under the collar. So often, whether for the Court or concurring or dissenting, she's in a "Now you boys quit fighting and settle down" kind of mode. Today she's throwing punches.

[W]ere the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.

Now, does today's decision follow from Midkiff and its predecessors? Certainly I had thought that Midkiff virtually turns the Takings Clause's public use requirement into nothing more than a pleading formality, and that fidelity to the Takings Clause would require that Midkiff be overruled. Justice Thomas calls in that direction, as we will see. But the principal dissent, which Thomas has also signed, insists there was a meaningful judicial role even after Midkiff, until today:

The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28—29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use....

It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.).

Brava!

Justice Thomas contributes an additional dissent, being once again the prophetic voice of original meaning, and, ahem, it sure would have been nice if Justice Scalia could have seen his way clear to joining this one, since it's so much in the spirit of his opinion for the Court in Nollan v. Coastal Commission and his partial concurrence/partial dissent in Pennell v. San Jose. Anyway.

After a tour of founding-era dictionaries and early takings jurisprudence, Thomas then rubs the majority's nose in the Peckhamite origins of its theory:

As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161—162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162.

And so on. Peckham, Peckham, Peckham! Yes, the Court is relying on a constitutional turn taken while the author of Lochner was driving, but the Court can't bring itself to say so, so Justice Thomas will, frequently.

As he occasionally does, Thomas makes himself the spokesman for the likely effects of the Court's decision on African-Americans, effects that of course are the opposite of what the liberal authors of those effects publicly intend:

Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects....

....In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

A bad day for ordered liberty, but a good day for dissents, and that's about all I've learned to hope for from this Court.

One reads a lot about this terrible "conservative activist" Court that we have. If the Court was "conservative" even for a brief interval, that era stopped when Justice Ginsburg replaced Justice White. As Kelo and Raich show, to say nothing of the abortion cases since Hodgson, the Court has working liberal majority. The only exception has been the substantial relaxation, throughout the '90s and early '00s so far, of the Court's extermination campaign against religion in the public square. And I'm betting that trend will be reversed next week when we find out that Establishment Clause bans public placement of the Ten Commandments.

:: David M. Wagner 8:33 PM [+] ::
...